Relates to setting a time limit for requesting full board review of unanimous board panel decisions

Section 2 of the bill amends workers' Compensation Law § 142(2) to require that a discretionary appeal be made in conformity with Workers' Compensation Law § 23.

Section 3 of the bill provides that the bill will apply to all requests for review of panel decisions issued ninety or more days after the effective date.

Existing law

The Workers' Compensation Law allows a party in interest to appeal from a decision of a panel of the Board, where there is a dissent, within thirty days of the filing of the decision with the Board's secretary. This is known as "mandatory" review since the Board must review the decision. The statute does not require that the application point to errors in the panel decision, nor does it specifically address requests for full Board review of unanimous Board panel decisions. Appeal from a unanimous decision is permitted under Workers' Compensation Law § 123, which provides for the Board's continuing jurisdiction over cases, and Workers' Compensation Law § 142(2), which states that the decision of a Board panel shall be final except "on application by a party in interest" for a Board review. Review of such an appeal is known as "discretionary" because it is within the Board's discretion to accept or decline requests for full Board review of unanimous decisions. There is currently no time limit for parties to request discretionary full Board review.

Prior legislative history

2008: S.8378 Passed Senate (62-0) A.11763 Reported by Labor to Codes

Statement in support

Under current law, those who appeal a Board panel's decision as of right when there is a dissent on the panel have only 30 days to do so. There is no time limit, however, on parties seeking discretionary review of unanimous Board panel decisions. This results in the anomaly that losing parties have more time to appeal a unanimous decision than they have to appeal a Board panel decision where they were able to persuade one of the three members that their position was correct. As a result, discretionary appeals sometimes are filed with the Board months after a panel decision. This bill would provide the same 30-day time limit for requesting discretionary full board review of unanimous Board panel decisions as currently applies for requesting mandatory full Board review of panel decisions where there is a dissent.

This bill also addresses a separate problem with appellate review by the full Board. At present, many appellants who request full Board review from either unanimous or 2-1 Board panel decisions simply resubmit the application they had submitted to the Board panel with a cover letter, essentially seeking two bites of the apple with no arguments or analysis addressing the intervening Board panel decision. Such additional filing requires virtually no cost or effort, but adds significantly to the workload of the Board. The bill remedies this problem by requiring that the application for Board review specifically address the panel decision.

Fiscal implications

None.

Effective date

The bill takes effect immediately and will apply to all requests for review by the full Board from decisions of a panel issued after the 90th day the bill becomes a law.